Citation Nr: 1636410
Decision Date: 09/16/16 Archive Date: 09/27/16
DOCKET NO. 12-00 222 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi
THE ISSUES
1. Entitlement to service connection for a right knee disability.
2. Entitlement to service connection for a left knee disability.
3. Entitlement to service connection for a low back disability.
4. Entitlement to service connection for radiculopathy in the lower extremities associated with low back disability.
ATTORNEY FOR THE BOARD
D. Schechter, Counsel
INTRODUCTION
The Veteran served on active duty from November 1978 to November 1998.
This appeal comes before the Board of Veterans' Appeals (Board) from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).
The Board previously remanded the claims in October 2014 and September 2015. They now return to the Board for further review.
The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS).
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
In a May 2016 submission the Veteran informed that during the eight years of his service when he was stationed in Germany he worked laying cable and operating generators, with the assigned military occupational specialty of Telecommunications Operator Maintainer, exposing him to work in harsh, cold-weather conditions. He informed that he received treatment for his left knee in February and March of 1987, April and July of 1996, September of 1997, and May of 1998, and received treatment for his right knee in March of 1995, March of 1996, April of 1996, July of 1996, September of 1996, and May of 1998. He reported treatment for his back in May 1977, August 1979, January 1993, December 1996, and March 1997. He then averred that these were only some of the dates of treatment for these conditions. He noted that he had twenty years of service, retiring at the age of thirty-eight-and-a-half, and that he had been denied service connection for his claimed conditions based on VA examiner's conclusions to the effect that he had natural disease processes of his knees and low back that did not manifest until at least 40 years of age.
The Board concludes that specialist examinations are warranted in this case, for the reasons set forth below.
KNEES
In March 1987 the Veteran was seen for left knee pain with bearing weight as well as popping in the joint after the knee giving way upon jumping up and landing. An assessment was to rule out bursitis.
A July 1996 service treatment record notes a history or recurring right knee pain since March 1995, being seen numerous times, and being placed on a profile, with noted recurrence of swelling and pain whenever he resumed running. A medial collateral ligament sprain versus tear was assessed.
In September 1997 the Veteran was seen for a swollen left knee following hitting the knee on the ground playing basketball. The Veteran exhibited guarding, limping, mild effusion, and valgus stress pain. He was assessed with a meniscal rupture/tear versus contusion.
In his May 1998 service examination for retirement, mild retropatellar crepitus was noted in the right knee. A history was noted of retropatellar bursitis of the right knee, resolved. The examiner also noted a feeling of instability in the right knee.
At a VA examination in December 2009 the Veteran reported that his knees did well over the years following separation from service until approximately two years ago, when he began having problems with stiffness with prolonged sitting, as well as aching pain with prolonged weightbearing. X-rays from June 2009 revealed degenerative joint disease of the knees.
Upon VA examination in July 2015, the examiner noted current disabilities of the knees consisting of osteoarthritis of each knee, which was diagnosed for each knee in 2009. Upon service records review, the Veteran was noted to have injured his right knee in 1995/1996, and his left knee in 1987 and 1997.
At the examination, the Veteran reported that he did not recall specifically how he injured his knees, but that he injured one running and the other playing basketball. He reported that he had received physical therapy with ultrasound for the right knee and had been on profiles including no running or jumping, which restrictions he believed were in place for months at a time. The Veteran described his knees as swelling or giving out if he ran, and that when he got out of the military he was able to walk but running still resulted in pain and swelling. He reported that currently he had pain and stiffness on a day-to-day basis, including morning stiffness and for his work at his desk he had to get up every half-hour due to knee stiffness. He also reported occasional giving way and buckling in both knees, and occasional right knee swelling. He did not run and tried to avoid stairs.
The July 2015 VA examiner considered the knee findings in service records including patellofemoral syndrome, meniscal tear, anterior cruciate ligament tear or strain, medial collateral ligament sprain versus tear, knee strain, and medial ligament tear of the right knee; and meniscal rupture versus tear versus contusion, and bursitis of the left knee. However, the examiner noted that these notations in service records were only initial impressions "based upon limited clinical exams such as location of pain, the mechanism of injury," and they were not "proven by radiologic or surgical means." The examiner added that if they had been present, "Torn meniscus and ligaments would have led to progressive problems and a likely early onset osteoarthritis if not undergoing significant treatment whether surgery or intensive therapy." Because the Veteran recovered from the knee injury incidents without such surgery or intensive therapy and did not have "significant knee complaints for more than a decade after the last of the injuries," the examiner concluded that listed conditions of the knees in service were merely not confirmed as significant disabilities in service, and the Veteran's current knee conditions were not those addressed as potentially present in service and were not associated with those address as addressed as potentially present in service.
The examiner stated that the first x-rays of the knees were taken in June 2009, and that treatment records reflected gradual onset of knee difficulties, with no difficulties with the knees following service until approximately 2007. The examiner added that this was a typical age of onset for the osteoarthritis of the knees, which usually gradually manifests after age 40. The examiner supported this observation with a citation to Centers for Disease Control (CDC) on-line literature on osteoarthritis, cdc.gov/arthritis/basics/osteoarthritis.htm. The examiner concluded that it was not at least as likely as not that the Veteran's osteoarthritis was causally related to his knee injuries in service.
However, while the July 2015 VA examiner cited to basic facts about arthritis on a CDC webpage to support conclusions the Veteran's osteoarthritis was of a naturally manifested variety occurring after age 40, the examiner did not address further findings noted in a link from the same webpage, "Risk Factors," which link includes joint injuries as a recognized risk factor which "can contribute to the development of osteoarthritis in that joint." See http://www.cdc.gov/arthritis/basics/risk-factors.htm. Another listed risk factor on the website is occupational: "Certain occupations involving repetitive knee bending and squatting are associated with osteoarthritis of the knee."
The Veteran's in-service duties in Germany laying cable and operating generators potentially required of the Veteran significant repetitive bending and squatting under difficult conditions, which may have significantly contributed to his osteoarthritis of the knees. Neither in-service injuries to his joints nor occupational activities have been addressed by VA examiners as potential contributors to the Veteran's osteoarthritis of the knees. Moreover, the July 2015 VA examiner did not address the pain and swelling in the knees with running that the Veteran reported was still present when he separated from service. This was potentially reflective of a degenerative condition of the knees present upon service separation.
LOW BACK AND RADICULOPATHY
In his May 1998 service examination for retirement, a history was noted of recurrent back pain, a single injury in 1980, and mechanical low back pain which had resolved.
At a VA examination in December 2009 the Veteran reported a history of injury to the low back in service from falling down stairs. He reported not seeking medical attention for his back following service separation, but rather calling in for pain medications. He had experienced flare-ups of pain every four to five months without definite precipitating factors, with each episode lasting three to four days and relieved with medication. The examiner concluded that it was "as likely as not" that the degenerative changes in the Veteran's knees and the degenerative disk disease at L5-S1 were age related rather than due to any incident in service.
The VA examiner in July 2015 observed that while the Veteran suffered back injuries in 1979, 1993, and 1997, these episodes were manifested by muscle spasms and paravertebral tightness without findings on x-rays. Back difficulties were noted to be characterized on the Veteran's retirement physical as mechanical back pain which had resolved. The examiner noted that degenerative disk disease with radiculitis, the currently diagnosed back condition, was not caused by muscle strains, but rather was likely related to a normal aging process. The examiner thereby concluded that it was not at least as likely as not that the Veteran's degenerative disk condition with radiculitis was due to injuries in service.
The July 2015 VA examiner, in a January 2016 supplemental report, informed that he had reviewed the medical literature and it did not support pes planus being a causative factor in development of either osteoarthritis of the knee or "low back pain with radiculopathy." Further, the examiner noted, "improvement in mechanics can lessen symptoms but there is no proof that it changes the disease process." The examiner reiterated his opinion from July 2015 that it was more likely that the Veteran's osteoarthritis of the knees was due to natural processes associated with aging. The examiner added that the Veteran's "lumbar condition with radiculopathy" was "also associated with an aging process."
As discussed above, the Board believes that an additional examination with opinion is warranted to address the likelihood of in-service work activities having substantially caused or contributed to the Veteran's degenerative disk disease of the spine and radiculopathy. VA examiners have also not adequately addressed whether the Veteran's reported intermittent low back pain episodes support the presence of low back disability from service, which this must also be addressed upon remand examination.
Accordingly, the case is REMANDED for the following action:
1. Ask the Veteran to provide the names and addresses of any additional providers who have treated him for his knee disabilities, low back disability, and radiculopathy. Specifically, the Veteran should be requested to complete authorizations for release of any private treatment records for these disabilities about which he has not yet informed VA.
Additionally, obtain relevant ongoing VA treatment records from January 2016 to the present.
2. After the foregoing development has been completed to the extent possible, schedule the Veteran for a knee examination by an orthopedic specialist. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. Following review of the claims file and examination of the Veteran, the examiner should provide opinions on the following:
a) The examiner should identify all current disorders of each knee, and indicate whether the Veteran has any current ligament or meniscal disability.
b) For each current disorder of each knee, to include arthritis, provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the disorder developed in service or was caused or substantially contributed to by injuries sustained in service and/or physical work performed in service.
In so doing, the examiner should expressly address the Veteran's self-reported history of pain and swelling in the knees with running beginning in service. The examiner should consider this history credible and address whether his in-service injuries and repetitive bending and squatting activities contributed to the development of his current knee disabilities. See, e.g., http://www.cdc.gov/arthritis/basics/risk-factors.htm.
The examiner must provide a rationale (an explanation supported by medical knowledge and the facts presented) for any opinion expressed.
3. Schedule the Veteran for a low back disability examination by a spine specialist. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. Following review of the claims file and examination of the Veteran, the examiner should provide opinions on the following:
a) The examiner should identify all current disorders of the low back.
b) For each current low back disorder, present during the claim period, to include any degenerative disk disease and associated radiculopathy, provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the disorder developed in service or was caused or substantially contributed to by injuries sustained in service and/or physical work performed in service.
In doing so, the examiner should address the Veteran's self-reported history of intermittent flare-ups of low back pain beginning in service, as reported by the Veteran at prior VA examinations. The examiner should also and address whether his in-service injuries and repetitive bending and squatting activities contributed to the development of his current knee disabilities. See, e.g., http://www.cdc.gov/arthritis/basics/risk-factors.htm.
The examiner must provide a rationale (an explanation supported by medical knowledge and the facts presented) for any opinion expressed.
4. After the above has been completed to the extent possible, readjudicate the claims. If additional development is deemed necessary based on additional evidence received pursuant to this remand, such should be accomplished. If the benefits sought on appeal remain denied, the appellant should be provided a supplemental statement of the case (SSOC). After the appellant has been given the applicable time to submit additional argument, the case should be returned to the Board for further review, if in order.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).